Siddhi Bhosale
Abstract: This article questions India’s ban on second-child surrogacy under the Surrogacy (Regulation) Act, 2021, highlighting how it overlooks couples facing secondary infertility. It argues that the blanket restriction unfairly limits reproductive autonomy under Article 21 and calls for a more humane, medically informed framework that prevents exploitation without denying reproductive choice.
SUMMARY
This article critiques the ban on the second-child surrogacy in India under the Surrogacy (Regulation) Act, 2021. It analyses the impact on the intending couples facing secondary infertility. While the objective of the Act remains to prevent the menace of commercial surrogacy, exploitation of surrogate mothers, however, the categorical exclusion of intending couples with a surviving child, fails to acknowledge the medical realities. Thereby, this article argues that the current framework governing the bar on the second-child surrogacy restricts the reproductive autonomy, privacy, and bodily integrity protected under Article 21 of the Indian Constitution. The article hinges on the constitutional jurisprudence, doctrine of proportionality, international obligations, etc., also, proposes reforms that preserves the objective of the Act without neglecting the reproductive choices.
Keywords: secondary infertility, surrogacy law, reproductive autonomy, bodily integrity
INTRODUCTION
Recently, the Supreme Court (‘SC’) in a bench comprising Justices BV Nagarathna and R Mahadevan agreed to examine the validity of the Section 4 (iii)(C)(II) of the Surrogacy (Regulation) Act, 2021 that bars married couples facing secondary infertility from accessing surrogacy. Secondary infertility refers to the inability of a couple to conceive or carry a subsequent pregnancy to term, despite having previously conceived naturally. In India, surrogacy is governed by the Surrogacy (Regulation) Act, 2021 (‘SRA’). Studies estimate that infertility affects approximately 3.9% to 16.8% of couples in India, highlighting the gravity of the issue. Further research suggests that secondary infertility constitutes significant portion in the infertility cases. Now, an ‘intending couple’ refers to a couple intending to become parents through surrogacy as delineated under Section 2(r) of the SRA. However, if an intending couple has secondary infertility, the SRA does not accommodate their predicament. Instead, Section 4 of the SRA categorically bars such couples from accessing surrogacy if they have any surviving child, whether biological, adopted, or born through surrogacy.
The only exception under the rule applies where the surviving child suffers from a life threatening disorder, fatal illness which has no permanent cure to it, or a physical or mental disability. However, this framework raises a grave concern for the intending couples who are medically incapable of conceiving a second child, yet they do not fall within the statutory exceptions. For instance, consider a couple who have a healthy first child but where the intending mother subsequently develops a serious medical condition, such as cardiac complications, or uterine damage after the childbirth that renders a future pregnancy life-threatening. Although surrogacy may be the only medically viable solution for them, the existence of a healthy surviving child automatically disqualifies them under Section 4(iii)(c)(II) of the SRA. Thereby, this rigid framework fails to account for such medical realities. Is the reproductive autonomy hampered by the State? Is the privacy of the intending couple breached? Can the State achieve the objective of non-commercialisation of surrogacy without this rule? This article argues that the absolute bar on surrogacy for the intending couples with a surviving child under Section 4(iii)(c)(II) of the SRA is constitutionally disproportionate, as it does not address the medical vulnerabilities of couples suffering from secondary infertility and does not advance the objective of the SRA that is preventing commercial surrogacy, thereby requires a medical exception rather than a blanket prohibition.
JURISPRUDENTIAL CONTEXT
I. THE CURRENT SURROGACY REGIME IN INDIA
The SRA does not define the term ‘infertility’ and fails to address the phenomenon of secondary infertility. However, the Assisted Reproductive Technology (Regulation) Act, 2021 defines infertility as the inability to conceive or other medical condition which prevents a couple from conception. Both legislations fail to acknowledge and excludes the key predicament of secondary infertility. The 228th law commission report released in 2009 recommended a ban to be placed upon commercial surrogacy, while advocating for altruistic surrogacy, resultantly after several years the SRA was passed with the object of preventing commercial surrogacy and preventing exploitation in India. However, adopting a blanket prohibition on second-child surrogacy as a regulatory mechanism is constitutionally untenable.
II. CONSTITUTIONAL IMPLICATIONS: ARTICLE 21 AND THE TEST OF PROPORTIONALITY
In XYZ and Anr. v. Union of India, the intending couple had fulfilled all the other criteria such as age requirement, requisite medical documents, however, owing to a healthy surviving child, the couple was barred under the SRA. The petitioners had contended that post the delivery of their first child, it became life-threatening to the wife for conceiving a second child naturally. This left surrogacy as the only viable option for them. This case underlines the harm caused by the statutory exclusion of couples with a surviving child, in circumstances wherein the pregnancy poses medical risks to the intending mother. The petition sheds light on the impugned provision which operates in a rigid manner without taking into account the medical assessments, complexities that are paramount in surrogacy. In such situations, it raises pertinent concerns such as whether the State is intruding into the personal lives of the citizens, does this violate the intending couple’s right to live with dignity, is this classification constitutionally lawful with the intended object of the enacted legislation, etc.
In the landmark case of Devika Biswas v. Union of India (2016), the hon’ble Supreme Court (‘SC’) recognised that reproductive choices form an indispensable aspect of personal liberty guaranteed under Article 21 of our Indian Constitution, right to bodily autonomy and integrity was upheld. Moreover, it was held that the State cannot impose the population control neither by resorting to the means of coercion, nor through reproductive practices. The decision of reproductive choices was resultantly safeguarded constitutionally by the SC. This case has reinforced the fact that reproductive choices form an integral part of the personal liberty under Article 21 of the Indian Constitution, thereby, the policies of the State influencing the reproduction should be non-arbitrary in nature and non-coercive manner. As a result, the reproductive autonomy is not confined to the decision-making ability whether to bear a child, but also extends to the manner in which parenthood is pursued where the biological reproduction is medically constrained. In cases of secondary infertility or in circumstances where pregnancy poses life-threatening health risks to the intending mother, the last recourse remains of surrogacy for exercising the right to parenthood. Therefore, a blanket ban on second-child surrogacy, as the proviso of ‘no surviving child’ disregards an individual’s medical necessity, such as health risks concerning pregnancy, secondary infertility, etc. This significantly affects the right to reproductive autonomy of intending couples and results in direct interference with the bodily integrity of the intending couples.
Thereby, the imposition of restrictions under the SRA, 2021 must be examined through the lens of proportionality. In Modern Dental College and Research Centre v. State of Madhya Pradesh (2016), as subsequently reaffirmed in K.S. Puttaswamy v. Union of India (2017), the Supreme Court articulated the doctrine of proportionality. Under the ambit of this test, for a fundamental right to be restricted, it requires (a) legitimate aim to be pursued (b) suitable means for reaching that goal (c) least restrictive of the available means (d) does not create a disproportionate impact. Herein, the State has the legitimate aim of preventing commercial surrogacy and the exploitation of surrogate mothers in dire need of monetary assistance, however, the suitable means adopted- proviso pertaining to ‘no surviving child’ has no rational nexus with the objective sought by the government. This has ripple effects. Couples who are otherwise eligible for surrogacy fail to satisfy the rigid requirement under section 4 (iii)(C)(II) of the SRA. This resultantly accrues an undue burden on individuals with secondary infertility, restricting their sacrosanct and constitutionally protected right of parenthood by the State.
Moreover, in X2 v. State (NCT of Delhi) (2023), it was held that the ambit of reproductive rights is not confined to the right of women whether to have children or not, a constellation of interrelated rights is recognised which also includes the right to freely decide on the matters vis-à-vis reproductive health, the right to choose number of children, right to reproductive health, etc. As a result, owing to the restriction pertaining to second-child surrogacy, it curtails the right of women to reproductive health, inadvertently affecting their right to choose the number of children. The ‘reproductive autonomy’ was recognised as an integral part of Article 21 of the Constitution by the Supreme Court long back in 2009 in the landmark judgment of Suchita Srivastava v. Chandigarh Administration., (2009). In this landmark judgement, it was held that a pivotal consideration should be given to women’s right to bodily integrity, dignity, and there should be ‘no restriction whatsoever on the exercise of their reproductive choices’. As a result, the provision under the SRA invalidates the women’s right and places a restriction on one of the reproductive choices available to women- surrogacy, without a rational means to achieve the object of the statute.
The former 50th Chief Justice of India, Dr D.Y. Chandrachud, had observed in 9-Judge bench in K.S. Puttaswamy v. Union of India, (2017), that decisional autonomy of an individual comprehends into intimate personal choices, such as those governing reproduction as well. Furthermore, ‘transformative constitutionalism’ emphasises the novel methods of family planning, childbearing, which should align and strengthen the societal shifts rather than impose undue legal or regulatory burdens and therefore, the quandary of intending couples facing secondary infertility should be effectively addressed by the SRA, than imposing regulatory burden. Thus, the provision under Section 4 (iii)(C)(II) of SRA warrants constitutional reconsideration.
III. INTERNATIONAL OBLIGATIONS AND REPRODUCTIVE RIGHTS
Adding to this, India is also a signatory to the Convention on Elimination of All Forms of Discrimination against Women (‘CEDAW’), 1979, and India ratified this convention in the year 1993. CEDAW recognises the right of women to make decisions freely on access to healthcare services as well as the number of children. Moreover, India is also signatory to the International Conference on Population and Development (‘ICPD’) Programme of Action, 1994, which recognises the importance of reproductive rights and services. Accordingly, India has recognised reproductive autonomy and the right to make informed decisions vis-à-vis parenthood under its international obligations. Now it is the pressing time to imbibe the intent into actions and treaties to fructify in reality.
Moreover, in the absence of any institutional mechanism that is capable of undertaking an individualised medical, consent-based scrutiny. Thereby, the absence of such a specialised institutional framework under the current legislation, results in the disproportionate exclusion of the intending couples suffering from secondary infertility.
CONCLUSION AND WAY FORWARD
In order to alleviate the menace of commercial surrogacy, a statutory board should be constituted to oversee the processes regarding consent, ensuring surrogate mothers are completely informed vis-à-vis the prohibition on commercial surrogacy and penalties attracted for acts in contravention, in their native language. This can be undertaken with the assistance of National Legal Services Authority, thereby providing legal aid effectively. Moreover, the SRA should delineate secondary infertility clearly within the definition of ‘infertility’. Under the SRA, a robust framework outlining the procedure for intending couples facing secondary infertility can be laid down. Furthermore, in the circumstances where natural conception is not medically possible, pregnancy poses a life-threatening health risk to the intending mother, with verified medical documents from the statutory board, the surrogacy should be permitted. Lastly, awareness campaigns amongst Anganwadi workers can also mitigate the persistent challenge of commercial surrogacy.
Siddhi Bhosale is a second-year B.A., LL.B (Hons.) student at Maharashtra National Law University Mumbai